Ontario Labour Relations Board
File No.: 0158-00-G Date: June 28, 2000
Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Metal Tech Systems Inc., Responding Party.
Before: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Decision of the Board
1This is an application for reconsideration of a decision issued April 28, 2000. In that decision, the Board acted on its authority, as outlined in that decision, to accept as true all of the facts alleged in the application and to issue a decision based on those facts. This application for reconsideration comes not from the responding party, but from the Universal Workers Union LIUNA Local 183 ("Local 183"). A different panel of this Board was scheduled to hear the assessment of damages as set out in the April 28 decision. At that hearing, Local 183 appeared alleging it ought to have been given notice and seeking the opportunity to make submissions as to its status to intervene and reasons why the decision should be reconsidered and revoked. The Board gave Local 183 time to make this application in writing and referred the issue to this panel as it was the one which had issued the original decision.
2Local 183 seeks status on the grounds that it represents certain persons in the employ of the responding party and has in fact made an application for certification in respect of these persons. While its submissions are lengthy, that is the basis of its intervention. If Local 183 has no status to intervene, none of the other submissions are relevant.
3Local 183 acknowledges that grievances are normally a private dispute between a particular trade union and a particular employer or group of employers. It cites no authority for the proposition that another union has status in an arbitration simply on the basis that it represents one or more persons in the bargaining unit. That fact (if proved) would give another union status in a representation application. The basis for granting such status is that the union does so as agent for the individual in the bargaining unit. Since any such person has a legal interest in the outcome of the application by virtue of his or her status as a member of the bargaining unit, the intervenor need only prove that it represents such a person.
4The same is not true for all members of a bargaining unit in a grievance and arbitration process. With one exception, they do not have status separate and apart from the union which is bringing the grievance. That union, until the Board declares otherwise, is the sole and exclusive bargaining agent of all the employees in the bargaining unit. The fact that another union may now command the loyalty of some or indeed all of them and has sought to displace the incumbent union does not change the legal status of the incumbent in respect of the processing of the grievance.
5The one exception to this rule is the employee who has a legal interest which may be adversely affected by the outcome of the arbitration. Thus an individual employee has status if the object of the grievance is his or her discharge (Hoogendorn v. Greening Metal Products and Screening Equipment Co. 1967 CanLII 20 (SCC), [1968] SCR 30), or if the employee holds a position (usually after a promotion) from which he or she would be displaced if the grievance is successful (Bradley v. Ottawa Professional Firefighters Association (1967) 1967 CanLII 160 (ON CA), 63 DLR (2d) 376 (OCA)). In that case the employee has the status to participate as a party. Thus certain employees may have the status to participate, but not all employees will have that status. Before any employee can assert a right to status, he or she must plead facts with respect to himself or herself to determine whether or not the employee has status. Since no such facts are pleaded here, there is no individual who, at this point, has demonstrated a right to status. Local 183 has not done so.
6However, the Board would caution the applicant that it is a rule of natural justice that all persons who may be adversely affected by a grievance must be given notice of an arbitration proceeding. The applicant would do well to determine if it has given notice to the appropriate persons.
7There is an additional concern raised by this file. Clearly, the facts as found by this panel in a "default" process can have an impact on the ongoing displacement application. Indeed, even the applicant has asked the Board to reconsider and revoke part of its decision. While the Board has said that any "default" decision is of no precedential value, such a decision would be res judicata with respect to the facts giving rise to the grievance. Since Local 183 is not a party to these proceedings, it could not be found to be bound by the results of the decision. However, the ends of justice are not served by having the same Board issue inconsistent decisions which are binding on some but not all parties in subsequent proceedings. The purpose of Rules 160-162 is to ensure expeditious adjudication of grievances that arise in the construction industry. It is not to create these kinds of procedural and jurisdictional problems, nor to determine issues in a different proceeding without the participation of all the parties in that other proceeding.
8Accordingly, the Board reconsiders and revokes its decision of April 28, 2000. The applicant is directed to advise the Registrar how it wishes to proceed in this matter. This panel is not seized of this application.
"David A. McKee"
for the Board